Lynn Connolly v. Deutsche Bank National TrustLynn Connolly v. Deutsche Bank National Trust
OPINION
McKEAGUE, Circuit Judge.
Lynn Connolly (“Connolly”) appeals the district court’s denial of a variety of claims arising from statutory foreclosure-by-advertisement proceedings conducted by the Defendant, Deutsche Bank National Trust Company (Deutsche). For the reasons set forth below, we AFFIRM.
I
This foreclosure concerns Connolly’s ten acre parcel of property. (R. 1, Complaint
Citi Residential Lending Inc., as Attorney-in-Fact for Ameriquest Mortgage Company, assigned the mortgage to Deutsche Bank National Trust Company, as trustee for Ameriquest Mortgage Securities Inc.1 This would constitute the first assignment of the mortgage. A few years later on April 28, 2009, Connolly filed for Chapter 7 Bankruptcy. (R. 20, Exhibit C Pl’s Deposition at 5, PageID # 289.)
On May 8, 2009, the mortgage was then assigned a second time,2 to a different trust for which Deutsche was a trustee. The second assignment was recorded May 13, 2009. (R. 20, Exhibit J Assignment of Mortgage at 1-4, PageID # 346-349.)
Subsequently, Deutsche foreclosed on Connolly’s property, and a sheriff’s sale was held on May 5, 2010. Deutsche was the highest bidder with a bid of $108,750. (R. 20, Exhibit A Sheriff’s Deed at 2, PageID # 271.) Connolly was then allowed a statutory twelve-month redemption period to purchase the property for the auctioned price. However, seven months into the redemption period on December 1, 2010, Deutsche, through its attorney, executed an Affidavit Expunging the Sherriff’s Deed pursuant to
On January 12, 2011, a third assignment3 was recorded, to another trust for which Deutsche was trustee. (R. 20, Exhibit L Third Assignment at 3, PageID # 356.) After the third assignment, Deutsche foreclosed the mortgage by advertisement. A sheriff’s sale occurred on May 18, 2011, and Deutsche had the highest bid with $172,000. (R. 20, Exhibit B 2011 Sheriff’s Deed at 2, PageID # 279.) A Sheriff’s Deed to Deutsche was recorded
Connolly asserted seven claims arising from statutory foreclosure-by-advertisement proceedings conducted by Deutsche as trustee.4 The district court granted Deutsche’s motion for summary judgment5 on all claims. (R. 31, Memorandum and Order at 1, 20, Page ID # 470, 489.) The district court, in turn, denied Connolly’s motion for partial summary judgment. Id. Connolly subsequently filed a motion for reconsideration, which the district court denied.6
II
Summary judgment may be warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
On appeal, Connolly argues that the dismissal of her claims constitutes reversible error. (Pl’s Brief at 5.) First, she claims that her mandatory redemption period has not expired. Id. at 3—4. On that premise, she argues wrongful foreclosure on three grounds: 1) Deutsche interfered with her statutory vested redemption rights by the use of a unilateral recording of a false Affidavit Expunging Sheriff’s Deed; 2) Deutsche did not have standing to foreclose on her home, namely because it did not carry its burden of proof that it is the true party entitled to enforce the debt; and 3) Deutsche obtained the power to foreclose through an incomplete and fraudulent recorded chain of mortgage assignments. Id. Next, Connolly claims the expungement affidavit constitutes a compensable slander of title. Id. at 3, 7.
A preliminary question is whether Connolly’s redemption period has expired. It is not disputed that Connolly failed to redeem within the twelve-month redemption period. However, Connolly argues that her complaint was filed timely, nearly a month before the expiration of her redemption period from the second sheriff’s auction, which she claims tolled the redemption period. However, “the filling of a lawsuit is insufficient to toll the redemption period.” Conlin, 714 F.3d at 360 (citing Overton v. Mortg. Elec. Registration Sys., No. 284950, 2009 WL 1507342, at *1 (Mich.Ct.App. May 28, 2009)). As such, “once the redemption period expires, the homeowner has no legal interest in the property that litigation might vindicate.” El-Seblani v. IndyMac Mortg. Servs., 510 Fed.Appx. 425, 428 (6th Cir.2013) (Daughtrey, Cole, Gibbons). Accordingly, Connolly’s redemption period has expired.
Courts have the ability to “allow an equitable extension of the period to redeem from a statutory foreclosure sale ... in order to keep a plaintiff’s suit viable, provided [s]he makes a clear showing of fraud, or irregularity by the defendant.” Id. (citing Schulthies v. Barron, 16 Mich.App. 246, 167 N.W.2d 784, 785 (1969)). Such fraud or mistake “must relate to the foreclosure procedure itself.” Id. at 429. The first issue, then, is whether the redemption period should be extended because of fraud or irregularity by the defendant. Even if the plaintiff can prove fraud or irregularity in connection to her claims, she will also have to surpass a more difficult hurdle of showing actual prejudice. See Conlin, 714 F.3d at 359-62; see also Kim v. JPMorgan Chase Bank, N.A., 493 Mich. 98, 115-16, 825 N.W.2d 329 (Mich. 2012). Prejudice is proven if the defendant “would have been in a better position to preserve [her] interest in the property absent defendant’s noncompliance with the statute.” Kim, 493 Mich. at 116, 825 N.W.2d 329. The concurring opinion in Kim provides factors to be considered when determining prejudice:
[W]hether plaintiffs were misled into believing that no sale had been had; whether plaintiffs act[ed] promptly after [they became] aware of the facts on which they based their complaint; whether plaintiffs made an effort to redeem the property during the redemption period; whether plaintiffs were represented by counsel throughout the foreclosure process; and whether defendant relied on the apparent validity of the sale by taking steps to protect its interest in the subject property.”
Id. at 120-21, 825 N.W.2d 329 (Markman, J. concurring) (citations omitted). We hold that Connolly cannot establish the fraud and prejudice required to extend the redemption period, as none of her claims are viable, as discussed below.
1. The Validity of an Affidavit Expunging a Sheriff’s Sale
Connolly’s principal argument on appeal is that the foreclosure was defective due to the filing of the expungement affidavit. Her contention lacks merit.
Numerous foreclosure cases in Michigan have accepted the use of an affidavit expunging a sheriff’s sale, yet very few have actually considered the validity of such a practice under the authority of
In many of the cases concerning expungement affidavits, the courts accepted the practice because the affidavit was not challenged.8 In others, the affidavit’s execution had the exact effect the plaintiff had sought as relief.9 One Michigan case, which is most factually on point, does not address the validity of the expungement affidavit even though it severed the prior redemption period.10 The only relevant case that addresses the validity of an expungement affidavit is Cordes v. Great Lakes Excavating & Equipment Rental, Inc., No. 304003, 2012 WL 2052789 (Mich.App., June 7, 2012). In Cordes, the court of appeals addressed competing interests in real property, where one party recorded an affidavit stating that the plaintiff’s mortgage should not have been discharged and that the mortgage remained in effect. The court ruled that “the [owner’s] affidavit rehabilitated the constructive notice of that mortgage in the land record title system.” Id. The Michigan Court of Appeals held that the expungement affidavit, pursuant to
The Michigan Supreme Court has yet to address the validity of an expungement affidavit. Therefore, we may look to
Connolly relies heavily on PHH Mortg. Corp. v. O’Neal, No. 311233, 2013 WL 3025566 (Mich.Ct.App. June 18, 2013), where she claims the court ruled that a homeowner’s statutory redemption rights cannot be unilaterally cut off by an expungement affidavit. (Def’s Brief at 28-29). Connolly’s interpretation of O’Neal is erroneous. In O’Neal, the property in dispute, worth approximately $80,000, was sold to the plaintiff at auction for $1000. Id. at *1. The defendant obtained a quit claim deed from the original mortgagor and attempted to redeem the property within the statutory period. Id. However, the plaintiff filed an expungement affidavit the same day as the conveyance of the deed and refused to accept the $1000 redemption amount. Id. In a two-count-complaint, the plaintiff sought to quiet title to the property and to set aside the sheriff’s deed on the mortgage foreclosure. The Michigan Court of Appeals affirmed the trial court’s award of summary judgment for the defendant. While this case is revealing, the court in O’Neal did not rule on the validity of the expungement affidavit. The court never discussed
Because prior Michigan law has consistently accepted an affidavit expunging a sheriff’s sale, as well as in other contexts such as mortgage discharges, this Court will similarly uphold the affidavit’s validity. The affidavit, therefore, does not prove fraud or irregularity in the foreclosure process and the redemption period cannot be extended. Connolly cannot prove prejudice from such an affidavit, as none of her claims are viable.
2. Deutsche’s Standing to Collect on the Mortgage
Connolly also claims that Deutsche has not presented any evidence that it has standing to collect on or enforce the Ameriquest Note. Connolly asserts that the subsequent assignments were conducted through forged robo-signing,11 which makes the foreclosure voidable.
Connolly does not present any viable case law to support her position that Deutsche lacks standing to foreclose. According to
3. Standing to Challenge the Mortgage Assignments
Deutsche Bank argues that Connolly does not have standing to challenge the validity of the mortgage assignments. It is well established that “a litigant who is not a party to an assignment lacks standing to challenge that assignment.” Livonia Properties Holdings, LLC v. 12840-12976 Farmington Road Holdings, LLC, 399 Fed.Appx. 97, 102 (6th Cir.2010) (Merritt, Rogers, Sutton). The court in Livonia established an exception to this rule, stating “[a]n obligor may assert as a defense any matter which renders the assignment absolutely invalid or ineffective, or void.” Id. (internal quotation marks omitted). Such defenses included “nonassignability of the instrument, assignee’s lack of title, and a prior revocation of the assignment,” all of which give the obligor standing because there was a possibility of “having to pay the same debt twice.” Id.
Connolly alleges that the robo-signatures are forged and should not be given effect because such fraud will render the chain of title voidable. The Court in Conlin ruled on this exact question, following the framework from Livonia. The plaintiff in Conlin claimed the chain of title of the defendant’s assigned mortgages was conducted through fraud or irregularity because the assignments were “forged or ‘robo-signed.’” Conlin, 714 F.3d at 360. This Court held that the plaintiff had no standing to challenge the assignments. Id. at 362. According to the Court, the plaintiff was a third party to the assignments and could only prove that any defect was merely voidable. Id. at 361-61. Connolly has not asserted any of the defenses from Livonia, nor is it clear that any of the defenses apply. Therefore, Connolly does not have standing to challenge the mortgage assignments.
Even if Connolly could prove an irregularity in the assignments, the court in Conlin further explained that defects from a voidable foreclosure require the showing of prejudice.12 Id. at 361. Such a showing of prejudice cannot be made. There is no evidence that Connolly was misled into believing there was no sale. Rather, Connolly waited eleven months
B. Slander of Title
On appeal, Connolly’s only slander of title argument is based on the unilateral interference of her redemption rights through the filing of the expungement affidavit. To prove slander of title, the plaintiff must make a showing that “the defendant maliciously published false statements that disparaged a plaintiff’s right in property, causing special damages.” B & B Inv. Group v. Gitler, 229 Mich.App. 1, 8, 581 N.W.2d 17 (Mich.Ct.App.1998). To prove malice, “the plaintiff must show that the defendant knowingly filed an invalid lien with the intent to cause the plaintiff injury.” Stanton v. Dachille, 186 Mich.App. 247, 262, 463 N.W.2d 479 (Mich.Ct.App.1990). Most importantly, the statute of limitations on a slander of title claim is one year. Bonner v. Chicago Title Ins. Co., 194 Mich.App. 462, 469, 487 N.W.2d 807 (Mich.Ct.App.1992).
In this case, the affidavit of expungement was executed on December 8, 2010. The complaint was filed on April 24, 2012; therefore, any invalid lien filed prior to April 24, 2011 would be time-barred. Since Connolly only raises the slander of title issue based on the expungement affidavit, the statute of limitations prevents her claim because the affidavit was executed before April 24, 2011. Even if it were within the applicable time frame, the expungement affidavit was valid and there is no evidence that it was filed with the intent to cause Connolly injury. Accordingly, we affirm the district court’s denial of Connolly’s slander of title claim.
III
For the reasons stated above, the district court’s grant of Deutsche’s motion for summary judgment is AFFIRMED. The district court’s denial of Connolly’s motion for partial summary judgment is AFFIRMED. The district court’s denial of Connolly’s motion for reconsideration is AFFIRMED.